PARAGON CONTRACTORS, INC.
v.
PEACHTREE CONDOMINIUM ASSOCIATION,

406 N.J.Super. 568 (App.Div. 2009)

This case involved a construction project wherein the contractor filed an action seeking damages from the condominium association regarding certain unpaid fees allegedly owed to the contractor for completed construction work. The condominium association filed a third-party complaint against the engineering firm, alleging that the engineering firm performed incomplete and defective design work in connection with the project.  When no affidavit of merit was served within 120 days of the engineering firm filing its answer to the third-party complaint, the engineering firm filed a motion to dismissal the third-party complaint pursuant to the affidavit of merit statute.

The Superior Court, Law Division, granted the engineering firm's motion to dismiss. The condominium association moved for leave to appeal, which the Superior Court, Appellate Division, denied. However, the Supreme Court granted leave to appeal and summarily remanded the matter to the Superior Court, Appellate Division to rule on the appeal.

The Superior Court, Appellate Division held that: (1) application of the doctrine of substantial compliance with the affidavit of merit was not warranted; (2) extraordinary circumstances were not presented that excused the condominium association's failure to comply with the affidavit of merit statute; (3) a trial court's failure to schedule the required case management conference does not toll the statutory deadline or otherwise excuse a malpractice claimant's noncompliance with the affidavit of merit statute; and (4) determination that the condominium association failed to comply with affidavit of merit statute warranted remand for consideration of the condominium association's common-knowledge argument.